Court finds US marriage law unconstitutional

2d appeals panel cites bias in ban on gay marriage

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Edith Windsor, who sued the government, spoke after a US appeals court ruling on the Defense of Marriage Act.

By John Schwartz
New York Times
October 19, 2012

NEW YORK — A federal appeals court ruled Thursday that gay Americans are a class of people who deserve the same kinds of constitutional protections as many other victims of discrimination.

The 2-1 ruling, by the US Court of Appeals for the Second Circuit, in New York, came as the panel struck down the federal law prohibiting federal recognition of same-sex marriage. It is the first time that a federal appeals court has applied this level of constitutional protection — known as heightened scrutiny — to those unions. It is now considered by some legal scholars to be the leading candidate for a Supreme Court review of the same-sex marriage issue.

The decision Thursday is the second by a US appeals court striking down the Defense of Marriage Act. The case, Windsor v. United States, now could be considered by the Supreme Court, or the court could choose other cases concerning same-sex marriage in its pipeline. Those include an earlier decision on the act by the Appeals Court for the First Circuit in Boston and one from the Ninth US Circuit overturning California’s ban on same-sex marriage. It could also decide to hear all of them.

“It’s an incredible moment in the struggle for gay rights in this country,’’ said James D. Esseks, director of American Civil Liberties Union’s Lesbian Gay Bisexual and Transgender Project.

The new case was brought on behalf of Edith Windsor of New York City, who married her longtime partner, Thea Clara Spyer, in 2007 in Canada. When Spyer died in 2009, Windsor inherited her property. Because the Internal Revenue Service was not allowed to consider her a surviving spouse under the Defense of Marriage Act, she faced a tax bill of $363,053 that she would not have had to pay if the marriage had been recognized.

Because the Supreme Court now has disagreement among circuits on a major issue of law involving the Defense of Marriage act, ‘‘this makes it more likely’’ that the Supreme Court will take up the cases, said Douglas NeJaime, an associate law professor at Loyola law school in Los Angeles. He noted that the most important justice in consideration of marriage cases was likely to be Justice Anthony Kennedy, who has sided with the liberal majority on such cases as Lawrence v. Texas, the case in which he wrote the majority opinion that struck down state sodomy laws.

As Kennedy has proved mindful of federalism issues, NeJaime said, he might be reluctant to take a case in which federal courts have struck down a state law like Proposition 8, in California. The Defense of Marriage Act cases, by contrast, struck down a federal law, and any decision by the Supreme Court would have an effect only in states that allow same-sex marriage.

‘’This is the kind of case that would appeal to Justice Kennedy for the court’s first intervention on same-sex marriage,’’ he predicted.

In the case Thursday, the majority opinion was written by Judge Dennis Jacobs, chief judge of the circuit; he was appointed by President George H.W. Bush. The ruling was joined by Christopher F. Droney, who was appointed by President Bill Clinton. Judge Chester J. Straub, also appointed by Clinton, filed a partial dissent in which he argued that the issue of same-sex marriage ‘‘is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process.’’

The court in the Windsor case parted ways with previous courts by elevating the standard of review for laws restricting same-sex marriage to what is known as ‘‘heightened scrutiny,’’ and which is based in large part on whether the people subject to the law have been discriminated against.

‘’It is easy to conclude that homosexuals have suffered a history of discrimination,’’ the court wrote. Thus they are part of what the law refers to as a ‘‘quasi-suspect’’ class that deserves any law restricting its rights to be subjected to such ‘‘heightened scrutiny.’’ Because the law could not pass that test, Jacobs wrote, it is unconstitutional under the equal protection clause of the Constitution.

Ultimately, Jacobs wrote, the court’s legal analysis ‘‘sidesteps the fair point that same-sex marriage is unknown to history and tradition,’’ but those are questions concerning ‘‘holy matrimony,’’ not the civil status recognized under the law.

‘‘A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it,’’ he wrote. ‘‘For that, the pair must go next door.’’

Windsor, speaking Thursday afternoon at a New York Civil Liberties Union news conference, proclaimed herself thrilled by the decision. Windsor, who is 83, said that she found it ‘‘so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life.’’

Spyer, she said, is ‘‘here with me in spirit and would have been so proud to see how far we’ve come.’’

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